Citation Nr: 9919429
Decision Date: 07/15/99 Archive Date: 07/21/99
DOCKET NO. 96-15 235 ) DATE
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On appeal from the Department of Veterans Affairs (VA)
Regional Office (RO) in Huntington, West Virginia
THE ISSUE
Entitlement to service connection for a psychiatric disorder,
to include post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
John M. Clarkson, III, Counsel
INTRODUCTION
The veteran had active service from January 1968 to August
1969. This case was remanded by the Board of Veterans'
Appeals (Board) to the RO in October 1997.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran did not engage in combat during service, and
a verified or verifiable stressor event in service is not
shown.
CONCLUSION OF LAW
A psychiatric disorder, to include PTSD, was not incurred in
or aggravated by service. 38 U.S.C.A. §§ 1110, 1154(b), 5107
(West 1991 & Supp. 1998) ; 38 C.F.R. § 3.304(f) (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
Review of the service medical records shows that, on August
1967 preinduction examination, the veteran indicated that he
had been rejected for military service due to "mental"
reasons. Apart from this medical history, the service
medical records do not contain a complaint, diagnosis, or
report of treatment of a psychiatric disorder.
The veteran's report of transfer or discharge from active
duty (DD-214) indicates that he was trained as a light
vehicle driver and that his military occupational specialty
(MOS) was truck driver. (A personnel record shows that he
also had an MOS of power generating equipment mechanic.) His
last duty assignment was with Company "B" of the 93rd
Engineer Battalion (Construction). The DD-214 does not show
that he received any awards or decorations specifically
related to combat.
Records of treatment of the veteran at Logan Mingo Mental
Health Center, dating from October 1994 to March 1995,
include an October 1994 social history. The veteran
complained of difficulty sleeping and depression, with crying
spells. He had trouble remembering things, was withdrawn,
experienced headaches, and had problems controlling his
temper. He reported flashbacks from Vietnam, and he had had
more difficulty dealing with flashbacks in the preceding
year. The assessment was major depression. Medical notes
from December 1994 and February 1995 include assessments of
depression and PTSD.
On April 1995 VA psychiatric examination, the veteran
indicated that he did not believe he could cope with, or
attempt to obtain, employment because he was trying to deal
with things he had seen in Vietnam. He had difficulty
sleeping, and reported having nightmares several times a
week. He began having nightmares soon after he returned from
Vietnam, but he was busy raising a family and the nightmares
did not seem to be as severe. He reported frequent crying
episodes which were triggered by thoughts of Vietnam. He
presented with symptoms of major depression. It was
recommended that he continue to seek treatment at Logan Mingo
Mental Health Center. The diagnosis was major depressive
disorder, single episode.
On April 1995 VA general medical examination, the veteran
gave a history of chronic PTSD and the examiner noted that he
had a rather prominent depressive history. Diagnoses
included PTSD, by history.
Records of treatment of the veteran at Matewan-Red Jacket
Medical Clinic, dating from September 1994 to September 1995,
do not reflect psychiatric treatment. A November 1995
medical report from orthopedic surgeon Diane E. Shafer, M.D.,
indicates that the veteran had "reactive depression" in
connection with treatment for a musculoskeletal disability
not issue in this appeal.
In a November 1996 statement, the veteran asserted that he
had a nervous disorder related to his experiences in Vietnam.
He added that he had problems with sleep, concentration, and
memory.
At a July 1997 hearing, the veteran testified that, in
Vietnam, his unit came under daily enemy mortar attack,
beginning in August 1969, and extending over a period of
approximately 2 to 21/2 months. He mentioned two locations in
connection with the mortar attacks. He said he had seen a
friend run over a 14-year old girl in his truck and he
believed that this occurred in about July 1969. He
previously received treatment for PTSD at the Logan Mingo
Mental Health Clinic and was receiving treatment at a VA
medical facility at the time of the hearing.
In the October 1997 remand, the Board directed the RO to
obtain from the veteran information about any psychiatric
treatment he received prior to service and since 1995. The
RO was also to obtain the morning reports of the veteran's
unit, from July to August 1969, to determine whether there
were any references to the unit coming under enemy mortar
fire at locations mentioned by the veteran, and whether a
young civilian girl was a casualty in a truck- incident
involving a member of the unit. When this development was
completed, the veteran was to be afforded a VA psychiatric
examination to determine whether he had PTSD based on a
verified stressor and/or the nature and etiology of any other
psychiatric disorder he had.
In a November 1997 letter to the veteran, the RO requested
that he provide the names and addresses of all providers of
mental health treatment prior to service and since 1995. In
a November 1997 written reply to the RO's letter, the veteran
stated, in effect, that he did not have any recollection of
acknowledging having a mental disorder prior to service, and
he asserted that he has PTSD as a result of experiences in
Vietnam.
In a March 1998 letter to the RO, the National Archives at
College Park, Maryland (National Archives) indicated that
daily journals of the veteran's unit, dating from July
through August 1969, had been located, but that a fee was
required to be paid to obtain the records.
In a March 1998 letter, the RO advised the veteran that
payment to the National Archives was required for release of
the information obtained in connection with his PTSD claim,
and that VA made no provision for payments of this type. The
RO's letter explained that, if the veteran desired that
records located by the National Archives be included with
evidence considered in connection with his claim, he could
use forms enclosed to request the records from the National
Archives.
On June 1998 VA psychiatric examination, the veteran gave a
history of driving a truck, working in construction and
hauling supplies in Vietnam. He assisted in construction of
an air strip and performed guard duty. While building the
air strip, his unit was attacked by Vietnamese who were
supposed to be protecting them. His unit was exposed to
mortar fire and he witnessed the accidental death of a young
girl who was run over by a truck. Diagnoses included Axis I:
recurrent depressive disorder and PTSD.
In a July 1998 letter to the veteran accompanying a
Supplemental Statement of the Case, the RO inquired whether
the veteran desired to include additional information with
the claims folder. In a September 1998 letter, the veteran
replied that he was in the process of obtaining records
located by the National Archives. In an October 1998
statement, his representative requested that the veteran be
permitted an additional sixty days to obtain records he was
seeking in connection with his claim.
In a February 1999 letter to the veteran, the RO again
inquired whether he desired to submit additional evidence to
the claims folder. The veteran's representative submitted a
March 1999 statement in support of the veteran's PTSD claim,
but no further evidence has been submitted.
Analysis
The claim of entitlement to service connection for PTSD is
"well-grounded" within the meaning of 38 U.S.C.A.
§ 5107(a); it is plausible. The Board is also satisfied that
all relevant facts have been properly developed, and that no
further development is required to comply with the duty to
assist the veteran mandated by 38 U.S.C.A. § 5107(a).
In Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), the United
States Court of Appeals for Veterans Claims (Court) held that
the duty to assist in development of claims is not always a
one way street, and that if a veteran wishes help, he cannot
passively wait for it in those circumstances where he may or
should have information that is essential in obtaining
evidence. In that regard, the Board notes that the case was
remanded to the RO to obtain additional information to verify
the stressor events reported by the veteran. The veteran
himself informed the RO in writing in September 1998 (and his
representative confirmed, also in writing) that he would
supply additional evidence from the National Archives in
connection with his claim, specifically morning reports of
his unit. However, he has not supplied the morning reports,
and the RO's efforts to obtain additional information have
been to no avail. Therefore, the appeal must be considered
based upon the evidence of record.
Service connection will be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110. Service connection for PTSD requires
medical evidence establishing a clear diagnosis of the
condition, credible supporting evidence that the claimed
inservice stressor actually occurred, and a link, established
by medical evidence, between current symptomatology and the
claimed inservice stressor. If the claimed stressor is
related to combat, service department evidence that the
veteran engaged in combat or that the veteran was awarded the
Purple Heart, Combat Infantryman Badge, or similar combat
citation will be accepted, in the absence of evidence to the
contrary, as conclusive evidence of the claimed inservice
stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f).
In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court cited
the three elements required by 38 C.F.R. § 3.304(f) to
warrant a grant of service connection for PTSD: (1) a
current, clear medical diagnosis of PTSD, (2) credible
supporting evidence that the claimed in-service stressor
actually occurred; and (3) medical evidence of a causal nexus
between current symptomatology and the specific claimed in-
service stressor. Cohen, 10 Vet. App. at 138. The Court
further held that, if the claimed stressor is not combat
related, a veteran's lay testimony regarding inservice
stressors is insufficient to establish the occurrence of the
stressor and must be corroborated by "credible supporting
evidence". Id. at 142. The Court also held that, in order
to permit judicial review of a denial of service connection
for PTSD by the Board, the Board must generally make specific
findings of fact as to whether the veteran was engaged in
combat with the enemy and, if so, whether the claimed
stressors were related to such combat. Id. at 145.
In this case, the veteran's DD-214 does not reflect combat.
His MOS was truck driver and the veteran has confirmed that
this was his MOS and he did not receive any combat awards or
decorations, nor has he provided any information which could
be used to verify combat participation. Consequently, the
Board finds that he did not engage in combat.
Where the claimed stressor is not combat related, a veteran's
lay testimony regarding in-service stressors is insufficient
to establish the occurrence of the stressor and must be
corroborated by credible supporting evidence. Cohen, 10 Vet.
App. at 142. In this case, the veteran's own statements
regarding the occurrence of stressors lack significant
detail.
The veteran has indicated that the most stressful episode he
experienced was the accidental death of a 14-year old girl
who was run over by a truck driven by his friend. However,
he cannot recall the name of the truck driver, or the
approximate date or location of the accident.
With respect to the VA and private psychiatric evaluations of
the veteran which include diagnoses of PTSD and/or
depression, it is noteworthy that the claims folder was not
available to the examiners on any of the VA and private
psychiatric evaluations of record and that any history
reported therein was based on the veteran's own accounts.
Finally, the Court has noted that 38 C.F.R. § 3.304(f)
precludes use of a medical opinion based on post-service
examination of the veteran as credible evidence to help
establish "actual" occurrence of in-service stressors.
Cohen v. Brown, 10 Vet. App. 128, 142 (1997).
In summary, to establish service connection for PTSD there
must be confirmation of inservice stressors. Here, there is
no adequate evidence establishing that the veteran's claimed
in-service stressors occurred. A critical element needed to
establish service connection for PTSD is missing.
Consequently, the claim of service connection for a
psychiatric disorder, to include PTSD, must be denied.
ORDER
Service connection for a psychiatric disorder, to include
PTSD, is denied.
GEORGE R. SENYK
Member, Board of Veterans' Appeals